Norfolk & Western Ry. v. PUC of Ohio
Decision Date | 02 January 1990 |
Docket Number | No. C2-87-766.,C2-87-766. |
Citation | 727 F. Supp. 367 |
Parties | NORFOLK AND WESTERN RAILWAY COMPANY, Plaintiff, v. The PUBLIC UTILITIES COMMISSION OF OHIO, et al., Defendants. |
Court | U.S. District Court — Southern District of Ohio |
Daniel A. Brown, Diane C. Reichwein, Porter, Wright, Morris & Arthur, Columbus, Ohio, for plaintiff.
Robert S. Tongren, James B. Gainer, William L. Wright, Asst. Atty. Gen., Public Utilities Section, Columbus, Ohio, for defendant, Public Utilities Com'n.
Mark A. Adams, Greiser, Schafer & Blumenstiel, Columbus, Ohio, for defendant, Co-operative Legislative Committee Brotherhoods & Railroad Unions, State of Ohio.
Plaintiff Norfolk and Western Railway Company (N & W) is an interstate rail carrier which owns and operates railroad bridges in the State of Ohio. In March of 1987, the Public Utilities Commission of Ohio (PUCO) ordered N & W to provide walkways and railings for trainmen along at least one side of two N & W bridges located in Medina, Ohio and Akron, Ohio. This order was based upon the provisions of § 4901:3-1-05(D) of the Ohio Administrative Code which provides that:
A suitable walk and railing from which trainmen may walk shall be provided along at least one side of all bridges and coal, ore, or other trestles.
On June 23, 1987, N & W commenced the present action requesting declaratory and injunctive relief. Presently before the Court are cross motions for summary judgment which present the question of whether or not Ohio's attempt to regulate walkways on railroad bridges is subject to federal preemption.
In CSX Transportation v. Public Utilities Commission of Ohio, 701 F.Supp. 608 (S.D.Ohio 1988), this court discussed federal preemption in a context similar to the present case. The following excerpts from that decision are equally pertinent here:
This court then stated, Id. at 610-611:
This court then went on to note, Id. at 612-613:
The Secretary has not acted affirmatively pursuant to the congressional grant of power under the FRSA to enact any regulations with respect to walkways on railroad bridges and trestles. However, the United States Supreme Court has recognized a form of negative preemption where a federal agency vested with the authority to regulate has determined that no regulation is appropriate. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 178, 98 S.Ct. 988, 1004-05, 55 L.Ed.2d 179 (1978) the Court said:
The Court has previously recognized that "where failure of ... federal officials affirmatively to exercise their full authority...
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